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1. Paulus, On the Edict, Book XXX.

The Velleian Decree of the Senate very fully provides that women cannot become sureties for anyone.

(1) For as, by our customs, women are deprived of civil office and very many things which they do are void by mere operation of law, much more should they be deprived of the power to perform an act in which not only their services and the mere employment of the same are involved, but also the risk of their entire private property.

(2) It seems to be just to come to the relief of a woman in this manner, so that an action should be granted against an old debtor, or against a party who had rendered a woman liable in his behalf, for the reason that he, rather than the creditor, had taken advantage of her.

2. Ulpianus, On the Edict, Book XXIX.

In the first place, during the reign of the Divine Augustus, and subsequently during that of Claudius, it was forbidden by Imperial Edicts that women should become sureties for their husbands.

(1) Afterwards, a Decree of the Senate was enacted by which relief was granted in the most perfect manner to all women. The terms of this Decree of the Senate are as follows: "Whereas, Marcus Silanus and Velleius Tutor, Consuls, have made statements concerning the obligations of women who have become responsible for the debts of other persons, and have given advice on this subject, as to what was necessary to be done; and, whereas this matter relates to securities and the making of loans in behalf of others for whom women had become bound, and although it appears to have been formerly decided by law that no demand, on this account, could be made upon them, nor any action be brought against them when they performed the duties of men, and as it is not just for them to be liable to obligations of this description; therefore, the Senate has decreed that those to whom application is made in court must act properly and in conformity with the established mode of procedure, and exert themselves so that the will of the Senate with respect to this matter may be observed."

(2) Therefore, let us examine the terms of this Decree of the Senate, after having previously eulogized the forethought of this most distinguished body of men which has brought relief to women on account of the weakness of their sex, in many supposed, as well as actual instances.

(3) Relief is only granted to them, however, where they have not been guilty of deceit, and this the Divine Pius and Severus stated in a Rescript, for assistance is rendered to those who have been deceived, but not to such as are guilty of fraud; and this is set forth in the Rescript of Severus, written in the Greek language, which says that this Decree of the Senate is not for the purpose of aiding women who are guilty of deception, for it is the infirmity of women, and not their cunning, that deserves assistance.

(4) Every kind of obligation is included in the Velleian Decree of the Senate, whether women have rendered themselves liable verbally, by the delivery of property, or by any other contract whatsoever.

(5) Where a woman even appears voluntarily in defence of anyone, there is no doubt that she binds herself in his favor, for she assumes the obligation of another, since she exposes herself to have judgment rendered against him in a matter of this kind. Hence a woman is not permitted to undertake the defence of her husband, her child, or her father.

3. Paulus, On the Edict, Book XXX.

Where, however, a woman appears for the defence of a party who, if he has judgment rendered against him, will have recourse against her, (as, for instance, where she appears in defence of the vendor of an estate which she has sold to him or to a surety of hers) she is not held to have bound herself in his behalf.

4. Ulpianus, On the Edict, Book XXIX.

If, however, I make a contract in the beginning, when I am ignorant for whom she wishes this to be done, the Decree of the Senate undoubtedly will not apply; and this the Divine Pius and our present Emperor stated in a Rescript.

(1) Hence, if when she wished to make a gift to Titius, she borrowed a sum of money from me, and gave it to Titius, the Decree of the Senate will not apply; but if she was about to give it to you, and pays the money to your creditor, she does not bind herself, for the Senate intended to give relief to a woman who had obligated herself, and not to one who had made a donation; and this was done for the reason that a woman incurs an obligation with more facility than she makes donations.

5. Gaius, On the Provincial Edict, Book IX.

It makes no difference whether the woman has paid the money for the purpose of discharging the debt, or has given in payment any of her property whatsoever, for even if she had sold her property and either paid the price received for the same in behalf of another, or substituted the purchaser to another creditor, I do not think that the Decree of the Senate will be operative, so far as the creditor of another party is concerned.

6. Ulpianus, On the Edict, Book XXIX.

Where persons bind themselves as sureties in behalf of the defender of a son who is absent, by the direction of his mother; the question arises whether relief will be granted them also by this Decree of the Senate? Papinianus says, in the Ninth Book of Questions, that they can make use of an exception, nor does it make much difference that they have given security for the defender, since they did so having in mind the direction of the mother. He says that it is evident that, if the party who accepted the said sureties was ignorant that the mother directed them to assume the obligation, the exception based on the Decree of the Senate can be met with a reply on the ground of fraud.

7. Papinianus, Questions, Book IX.

Therefore, although the surety, having filed a replication on the ground of fraud, loses the defence based on the exception, he will, nevertheless, not be entitled to a replication as against the woman, because he cannot allege ignorance of the facts. It would not be unjust, however, for an action on the ground of business transacted to be granted against a defender; because it is established by the Decree of the Senate that a proceeding on the ground of mandate is void, and he is released by payment of the money by the surety.

8. Ulpianus, On the Edict, Book XXIX.

Although the giving of a pledge establishes an obligation, still, Julianus states in the Twelfth Book of the Digest that the restoration of a pledge does not constitute the giving of security, if a woman, who is the creditor, releases to the debtor the property which she received in pledge.

(1) Where a woman appears before the guardians of her son to prevent them from selling his land, and promises to indemnify them; Papinianus, in the Ninth Book of Questions, does not think that she bound herself as surety, for she did not accept either the old or new obligation with reference to another, but she herself contracted this obligation.

(2) Where a woman binds herself to Primus in behalf of Secundus, and afterwards binds herself in behalf of Primus to his creditor; Julianus states in the Twelfth Book of the Digest that she has bound herself twice, once for Primus to Secundus, and again for Primus to his creditor, and therefore she has contracted an obligation both for Primus, and against him. Marcellus, however, notes that a difference exists here, that is, whether it must be understood that the woman, in the beginning, has been substituted in the place of another, and has undertaken to assume the burden of the debtor from whom the creditor desired the obligation to be transferred; or whether she was substituted as a debtor, so that, if this was the case, there is but one giving of security. Hence, in accordance with this distinction, which existed at first sight where she has, so to speak, been substituted as a debtor, Marcellus will not grant her an exception based on the Decree of the Senate. However, after having judgment rendered against her, or even before this takes place, she will certainly be entitled to a personal action against the party by whom she has been substituted.

(3) Sometimes a suit for recovery will lie in favor of a woman who gives security, to recover what she has paid, or if she has not yet paid anything, to obtain her release from liability, for example, where, having bound herself in violation of the Decree of the Senate, she substitutes her debtor; as, in this instance, a personal action for recovery will lie in her favor against her creditor, just as if she brought suit for money which she had paid, for anyone who substitutes a debtor makes payment.

(4) But if he who has been substituted by the woman is not indebted to her, he can avail himself of the exception based on the Decree of the Senate, as he could have done if he had been her surety.

(5) It is evident that if a woman, being about to bind herself, substitutes her debtor, the Decree of the Senate will not apply, because, even though she paid the money, it will not be applicable; for the woman is granted relief by the Decree of the Senate, but does not make restitution of property which has been lost.

(6) If, however, she has substituted some one who was not her debtor, a fraud is held to have been committed against the Decree of the Senate, and therefore an exception will be granted.

(7) Where a woman becomes bound for a debtor, the former action is granted against him, even though he may have been discharged from liability by a release before the woman obligated herself.

(8) Where a creditor has agreed with his debtor that the latter shall provide some one in his place, and this proposition having been accepted, he is thereupon released, and he then gives a woman as surety who can have recourse for aid to the Decree of the Senate, a personal action can be brought against him, just as if he had not given any surety; for what difference is there between not giving any, and giving one of this kind? Therefore, a praetorian action will not be necessary, since a personal action for recovery will lie.

(9) Marcellus also states that, if a creditor releases a woman after she has become a surety, an action for restitution should, nevertheless, be granted to the creditor, for he has released an obligation which is void.

(10) If a woman, after having become a surety, makes payment in such a way that she cannot recover, the former debtor can very properly refuse to defend an action brought against him; but, as the principal debtor is released, and the woman makes payment in such a way that she cannot recover, he cannot recover from her either, if he should pay, and the creditor should release him in the same manner.

(11) Although the action is restored against all those who are released, this is, however, not done in favor of all creditors; as, for instance, where there are two creditors who enter into a stipulation, and a woman becomes surety to one of them, the obligation is restored in the case of him alone to whom she became surety.

(12) Where a creditor becomes the heir of a woman who has assumed an obligation of this kind, it should be considered whether the action for restitution will not be available. Julianus says in the Twelfth Book that he is, nevertheless, entitled to the action for restitution, and this is not unreasonable, as he in fact succeeded to a woman not legally bound, and therefore this debt will not be taken into account in the administration of the Lex Falcidia.

(13) It is evident that, if you propose to me the case of a woman who has succeeded as heir to an original debtor, it must be said that she can be sued in an action for restitution as well as in a direct action, for it makes no difference whatever under which action proceedings are brought.

(14) If, when I am about to make a contract with you, a woman appears, and I prefer to make a contract with her, she is held to have bound herself as surety, and, in this instance, an action will be granted against you, the effect of which is rather to originate than to restore an obligation; so that, in consequence, you will be bound by the same kind of an obligation as that by which the woman is bound; for example, if the woman is bound by a stipulation, you also can be sued as under a stipulation.

(15) It should be considered whether, if a woman offered herself as a surety for a party who was not bound when a contract was made with him, he should be liable to this action; as, for instance, where a woman became surety for a ward without the sanction of his guardian. I think that the ward would not be bound unless he profited pecuniarily by the contract. Moreover, he for whom the woman became a surety, if he is under twenty-five years of age, can demand complete restitution, or if, while a son under paternal control, he entered into a contract in violation of the Decree of the Senate, he will be entitled to the same privilege.

9. Paulus, Rules, Book VI.

Where a woman becomes surety for the slave of another, the action will be restored against the master, just as it would have been against the head of the family as the principal debtor.

10. Ulpianus, On the Edict, Book XXIX.

These actions which are granted against those in whose behalf a woman has become surety, and against their heirs, are perpetual; for they have in view the recovery of the property, and they will be granted also in favor of praetorian successors as well as against them.

11. Paulus, On the Edict, Book XXX.

Where a woman borrows money under the pretext of using it for her own purposes, but in fact with the intention of lending it to another; there is no ground for the application of the Decree of the Senate, otherwise, no one would contract with women, because he would be ignorant what their intentions were.

12. The Same, Abridgments, Book VI.

The Decree of the Senate will, however, certainly be operative when the creditor is aware that the woman has become a surety.

13. Gaius, On the Provincial Edict, Book IX.

Sometimes, although a woman may have assumed an obligation in behalf of another, she is not assisted by this Decree of the Senate, which happens when a woman assumes an obligation which, at first sight, appears indeed to be that of another, but is, in reality her own; as for instance, where a female slave has provided another debtor on account of an agreement connected with her freedom, and, after her manumission, assumes the very obligation which the debtor owes; or where a woman purchases an estate, and assumes the debts of the estate herself, or where she becomes the guarantor of her own surety.

(1) A creditor has no need of a new action with reference to the pledges of a former debtor, as the Servian Action (which is also designated the hypothecary action) is available in instances of this kind; since it is true that an agreement has been made with reference to pledges, and that the money has not been paid.

(2) If a woman appears as surety for another party under a certain condition, or with reference to a certain time; while the condition is pending, an action for restitution should be granted to the creditor against the former debtor, if he wishes it; for what advantage will it be to wait for the fulfillment of the condition, or for the expiration of the time, since the former debtor is in such a position that he must, by all means, defend the action brought against him?

14. Julianus, Digest, Book XII.

Where a woman has become surety for another in violation of the Decree of the Senate, it is but just that the action should be restored for the benefit of the creditor not only against the original debtor, but also against his sureties; for when the responsibility of the woman was taken away from the creditor on account of the Decree of the Senate, the former cause of action should be restored unimpaired.

15. The Same, Digest, Book XV.

Where I pay a woman what I owe you, and I stipulate with her that you will ratify her act, and you do not do so; I can institute proceedings based on the stipulation, and the exception founded on the Decree of the Senate which was enacted with reference to the obligations of women, will not be of any advantage to her; for she cannot be considered as refusing to assume the obligation of another, when I remain bound for the debt, and she herself profits by the transaction; and she may rather be held to have returned what was not due, than to have paid it out in behalf of another.

16. The Same, On Urseius Ferox, Book IV.

If a woman has become surety for me to Titius, in violation of the Velleian Decree of the Senate, and Titius sues her for the money which I have paid her, she cannot avail herself of the exception based on the Decree of the Senate, for she was in no danger of losing the money, since she already has it in her possession.

(1) If I have accepted a surety for a woman who has bound herself in violation of the Decree of the Senate, Gaius Cassius answered that an exception should be granted to the said surety, only to the extent that the woman had asked him to be responsible for her. Julianus, however, thinks very properly than an exception should be granted to the surety, even though he is not entitled to an action on mandate against the woman; for the reason that the Senate disapproves of the entire obligation, and the liability of the former debtor to the creditor is reestablished by the Praetor.

17. Africanus, Questions, Book IV.

A husband, desiring to make a present to his wife, sold her property at a very low price, and substituted her for that price to one of his creditors. The answer was that the sale was of no force or effect, and if the creditor sued the woman for the money, an exception would be available, even if the creditor has thought that the woman was the debtor of her husband. This does not seem to be contrary to the established principle, in accordance with which if a woman has borrowed money for the purpose of lending it to her husband, an exception cannot be interposed if the creditor was ignorant with what intention she borrowed it; since, indeed, it makes a great deal of difference whether anyone contracts with a woman in the first place, or transfers the obligation of another to her, for then the creditor should be more diligent.

(1) If a woman should say that she had received certain property in pledge to secure her dowry as well as the payment of a sum of money, and a creditor who was about to take the same property in pledge, should see that the dowry was paid, and, being in possession, opposes her when she brings the Servian Action on the ground that the pledge had not been given with her consent; a replication, based on the Decree of the Senate, will be of no advantage to the woman, unless the creditor was aware that other money, exclusive of that of the dowry, was also due to her.

(2) A woman and Titius borrowed money for the purpose of expending it upon property belonging to them in common, and they became joint-debtors for the said money. I said that the woman could not, by any means, be held to have given security for the share of her partner; for if they had borrowed money for a purpose for which the creditor did not lend it, the woman would sustain the greater loss, (as, for instance, where a house jointly owned by them was not propped up, or where a tract of land held in common was confiscated) and it should rather be considered that there was no ground for the application of the Decree of the Senate. But where the borrowed money was obtained for some purchase, then she would be held to have become surety for her share, and therefore the creditor could only collect part of the money from her; because, if he claimed the entire amount, he would be barred by an exception with reference to a portion of the same.

18. Paulus, On Plautius, Book VIII.

The same rule applies where Titius and the woman become sureties, as two debtors, for my debtor.

19. Africanus, Questions, Book IV.

The guardian of a ward died after having appointed Titius his heir. The latter hesitated to accept the estate, because the guardianship was supposed to have been badly administered, and the mother of the ward having persuaded Titius to enter upon the estate at her risk, he did so, and made an agreement with her that she would indemnify him against any loss he might sustain. If Titius should be compelled to pay anything to the ward on account of the estate, and should sue the mother, it was denied that an exception based on the Decree of the Senate would be available, for it is scarcely to be supposed that any woman would become surety for a party in his presence.

(1) A proposition not unlike the one above mentioned was proposed, namely: A certain man of praetorian rank died leaving two sons, one of whom had not arrived at puberty, and the other who was the legal guardian of the first. The former wished to reject his father's estate, but was prevailed upon to accept it by the wife of the deceased, who was the mother of the ward, the latter having refused it. Julianus says that he would have given a similar opinion if the guardian had had judgment rendered against him in a case brought by the ward on this account; and that he would not have been prevented by the Decree of the Senate from recovering damages from the woman.

(2) In this connection, the following point should be discussed, that is, if he who had entered upon the estate by the direction of the woman, suffers any loss because the debtors of the estate are insolvent, would the Decree of the Senate be applicable, since the woman had, to a certain extent, assumed their obligations? The better opinion is, however, that the Decree of the Senate would not be available on this ground, since she did not intend to become surety for them, but her intention was to guarantee the guardian against the ward, and perhaps the estate against other creditors.

(3) Finally, if we suppose that the woman suffered some loss on account of the purchase of the estate, because the debtors of the same were not solvent; I do not think that there can be any doubt that the Decree of the Senate will not apply, even though she was obliged to pay a certain amount to the creditors.

(4) But what if Titius should hesitate to enter upon the estate, because the obligations of the debtors seem to be of doubtful value; and the woman promised that she, herself, would make good whatever he failed to collect from any of said debtors? It is probable that, in this instance, she has become liable.

(5) You have Titius for your debtor, and the woman desires to become surety for him, and you did not accept her on account of the Decree of the Senate; whereupon she applied to me for the purpose of borrowing money with which to pay you, and I, being ignorant of the reason for her making the loan, she made a promise to me to pay it, and directed me to pay you the money. Then, for the reason that I did not have the sum on hand, I bound myself to pay it to you. The question arose whether I could collect that money from the woman, or whether an exception based on the Decree of the Senate could be effectually pleaded by her? The answer was, that it should be considered whether it might not reasonably be said that I could be held liable in the place of the party who had become surety for the woman, and that, just as an exception is granted against a creditor, although he may be ignorant that a woman has become security for him, lest an action on mandate may be available against the woman, so a valid exception can be granted against you, and an action against the woman will be refused me, since this obligation would be at her risk. This can the more readily be stated if, before I had paid you the money, I should discover that the woman had become the surety; but if I should have previously paid you, it should be considered whether or not, an exception would, nevertheless, be granted the woman against me, and I can bring a personal action against you to recover the money; or whether, in fact, it should be held that in the beginning I had lent the money to the woman, and afterwards you had made a loan to me. This indeed was held to be the better opinion, so that there was no ground for the Decree of the Senate, just as where a woman substitutes her debtor there is no ground for considering this as security. The authority states that these two examples cannot properly be compared with one another, since, when the substitution of the debt is made, the woman is not bound; but in the case stated she transfers the obligation of another to herself, which it is certain the Senate did not wish to be done.

20. The Same, Questions, Book VIII.

If a woman becomes surety for one debtor, where there are two, the action is restored to the creditor as against both.

21. Callistratus, Institutes, Book III.

Where a woman becomes surety for another party, and what has been paid is employed for her benefit, the exception based on the Decree of the Senate will not apply, because she has suffered no loss.

(1) Likewise, a woman will not be protected by the Decree of the Senate, if she has committed a generous act; as, for instance, where she binds herself for her father to prevent his being annoyed by the payment of a judgment which has been rendered against him, for the Senate gives relief to the burdens of such persons.

22. Paulus, Rules, Book VI.

If I give money to a woman in order that she may pay my creditor, or she promises to pay the debt; Pomponius states that where she makes such a promise the Decree of the Senate will not be available, because she has rendered herself liable to an action on mandate, and is held to have bound herself with reference to her own affairs.

23. The Same, On the Velleian Decree of the Senate.

Where a woman interrogated in court answered that she was the heir, and she did so well knowing that she was not the heir; she will, by no means, be held to have bound herself to another, because she was guilty of deception; but if she thought that she was the heir, and, being deceived as to this, answered in this way; many authorities are of the opinion that an action will be granted against her, but that she can have recourse to an exception based on the Decree of the Senate.

24. The Same, Concerning the Obligations Contracted by Women for Others.

Where a woman who was substituted as a debtor by a creditor, made a promise in behalf of the party for whom she was substituted, she cannot avail herself of an exception,

(1) But if she promised to pay money in order to avoid being substituted, she is held to have obligated herself, and can do so.

(2) In a case where the benefit of the Decree of the Senate is available, the question arises whether an action will lie against the former debtor at the time when the woman obligated herself, or whether the latter can bring suit for the recovery of what was paid? I think that this can be done at once, and that it is not necessary to wait for payment.

(3) Where a woman binds herself for a party who was liable to an action limited by time, this temporary action will be restored to the creditor, so that the time will run after the date of the restitution of the action growing out of the preceding circumstances, although he could have availed himself of it at the very instant that the woman became surety.

25. Modestinus, On Undertakings.

Where a woman orders credit to be given to her slave, she will be liable to a praetorian action.

(1) If she has given security for him, and suit has been brought against her, she can protect herself by means of the exception under the Velleian Decree of the Senate, unless she did this on account of some affair of her own.

26. Ulpianus, On the Edict, Book XXXVII.

Where a woman, with the intention of obligating herself for another, states in court that the slave of someone else belongs to her, she can avail herself of the aid of the Decree of the Senate on the ground of having bound herself for another. It is evident that if she made this answer with reference to one who was serving her as a slave in good faith, she will not be considered to have bound herself for another.

27. Papinianus, Opinions, Book III.

Where a party having made a contract with a woman in good faith proceeds against her because the money which he borrowed has been employed in transactions between husband and wife; he will not be barred by an exception based on the Decree of the Senate.

(1) Where slaves who have been appointed for the transaction of business, in contracting with another, bring suit against a woman whose obligation they think to be valid, an exception based on the Decree of the Senate will bar their owner; nor will the position of the latter be held to be prejudiced by the act of the slave, for nothing has been obtained by the owner, any more than when a slave buys land which is in litigation, or a man who is free.

(2) A wife substituted another woman as her debtor to her husband, and the husband paid the money to her creditor. If she guaranteed the solvency of the woman who was substituted to her husband, the exception based on the Decree of the Senate will not be available, because the woman is transacting her own business.

28. Scaevola, Opinions, Book I.

Seia bought some slaves, and having borrowed money with her husband as surety, paid the vendor. Her husband afterwards died insolvent, and, for the purpose of defrauding his creditor, stated in his will that he owed the entire amount; and the question arose whether the woman could be held to have bound herself in behalf of another? I answered, that in accordance with the facts stated, she had not bound herself. A husband, in order to secure a lease, pledged to Sempronius a tract of land belonging to his wife. The woman having afterwards borrowed money from Numerius on her own account, with the encumbrance of the same tract of land, immediately paid Sempronius for her husband. The question arose whether she contracted this obligation in violation to the Decree of the Senate. I answered that, if Numerius was aware that she had obligated herself for another, the Decree of the Senate would apply in the case stated.

29. Paulus, Opinions, Book XVI.

A certain man wished to contract with the heirs of Lucius Titius and to lend them money, but as he suspected that they were not solvent, he preferred to lend it to the widow of the testator, and take a pledge for her. The woman lent the same money to the heirs, and took a pledge from them. I ask whether she is held to have obligated herself for another, and whether the pledges which she took are liable to the creditor? Paulus answers that if the creditor who desired to make a contract with the heirs of Lucius Titius avoided doing so with them, and preferred to have the widow as his debtor, the Decree of the Senate which was enacted with reference to the obligations contracted by women for others, will be available against him, and that the pledges given by her will not be liable. The property which the woman received by way of pledge from those in whose behalf she became bound will be liable to the creditor of the woman, and the Praetor will not act unreasonably if he grants an action against the principal creditors, for the purpose of relieving the woman from responsibility, as well as against the property which had been encumbered by them to her.

(1) Paulus states that everything which can be proved to have been planned to evade the provisions of the Decree of the Senate enacted with reference to the obligations incurred by women for others, should not be considered valid.

30. The Same, Sentences, Book II.

Where a woman becomes surety for another with the intention to deceive, or when she knew that she could not be held liable, an exception based on the Decree of the Senate will not be granted her; for the most Noble Order of the Senate does not exclude the action which will lie on account of fraud committed by a woman.

(1) If an agent obligates himself for another by the direction of a woman, he can have recourse to the exception based on the Velleian Decree of the Senate, lest, otherwise, the right of action may be extinguished.

31. The Same, On Neratius, Book I.

Paulus says if a woman does not wish to recover what she paid on account of her becoming bound to another, but prefers to bring an action on mandate, and to reimburse herself for indemnifying the debtor, she should be heard.

32. Pomponius, Decrees of the Senate, Book I.

Where a woman enters upon the estate of anyone in order to assume payment of the debts due from it, it will be difficult for her to obtain relief, unless this has been contrived by the fraud of the creditors; for a woman ought not to be considered as, in every respect, occupying the position of a minor under twenty-five years of age who has been overreached.

(1) When a woman wishes to recover property given in pledge by her at the time she became surety for another, she should also receive the crops and the offspring of slaves, and, if the property has been deteriorated, a larger sum should be paid on this account. Where, however, the creditor who received the pledge to secure the obligation has sold it to a third party, the true opinion is that of those who think that an action should be granted to her, even against a purchaser in good faith; because the position of a purchaser should not be better than that of the vendor.

(2) Likewise, if a woman sells a tract of land to the creditor of her husband, and delivers it on condition that the purchaser will apply the money received to the payment of her husband's debt, and she brings suit to recover said land, she can be met by an exception on the ground of property sold and delivered; but she can reply that the sale has been made against the provisions of the Decree of the Senate. This can be done whether the creditor himself purchases the property, or whether he has employed someone else to do so, in order that the woman may be deprived of it in this manner. The same rule applies where the woman has transferred her property, not in behalf of her husband, but in behalf of some other debtor.

(3) Where a woman, to avoid binding herself for another, directs a third party to do this for her, will the Decree of the Senate apply to this person who has acted at the request of the woman? The entire substance of the Decree of the Senate has reference to the denial of the suit against the woman herself, and I think a distinction should be made here; as, for instance, where a creditor, to whom I have bound myself at the direction of a woman, has devised this plan for the purpose of evading the Decree of the Senate, as the woman does not seem to have bound herself in violation of that Decree, but offered someone else; he should be barred by an exception based on fraud committed against the Decree of the Senate. If, however, he should be ignorant of the facts, but I should be aware of them, then, if I bring an action on mandate against the woman, I will be barred, but I will still be liable to the creditor.

(4) Where a woman is ready to join issue in behalf of the party for whom she obligated herself, in order that an action may not be granted against the first debtor, as she can plead the exception based on the Decree of the Senate, she must give security that she will not avail herself of the exception, and then proceed to trial.

(5) A woman is also understood to bind herself for another, even when she does this for one who cannot be bound; as, for instance, where she obligates herself for a slave belonging to another, but her obligation will be extinguished if the action should be restored against the master of the slave.
 

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Tit. 2. Concerning set-off.

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1. Modestinus, Pandects, Book VI.

Set-off is a contribution made between a debt and a credit.

2. Julianus, Digest, Book XC.

Any one can bar his creditor, who is also his debtor, when he brings an action against him if he is prepared to set off his claim.

3. Pomponius, On Sabinus, Book XXV.

Set-off is therefore necessary, because it is more to our interest not to pay, than to bring an action to recover what has been paid.

4. Paulus, On Sabinus, Book III.

The opinion of Neratius, which is also held by Pomponius, is correct, namely: that what the principal debtor can retain as set-off the surety is released from liability for, by operation of law, in every contract; just as if when I bring suit for the entire amount against a debtor I do not proceed properly, and thus the security is not liable in strict law for a larger amount than the principal debtor can be compelled to pay as a judgment.

5. Gaius, On the Provincial Edict, Book IX.

Where a claim is demanded from a surety, it is perfectly just for the latter to choose whether he prefers to set off what is due to himself or what is due to the principal debtor. He should also be heard if he wishes to make a set-off against the claims of both,

6. Ulpianus, On Sabinus, Book XXX.

Whatever is due in consequence of a natural obligation can also become the subject of set-off.

7. The Same, On the Edict, Book XXVIII.

What is due at a certain time cannot be set off before the time arrives, even though it may be necessary for it to be paid.

(1) Where the judge does not consider the set-off, the right of action is saved to the creditor, for an exception based on the ground of a decision rendered cannot be interposed. I hold that the case is different if the judge has refused to consider the set-off on the ground that no debt existed; for then an exception based on a decision rendered will prejudice my case.

8. Gaius, On the Provincial Edict, Book IX.

That also is included in a set-off for the recovery of which suit has already been brought against the plaintiff, in order to prevent the condition of the more diligent party from becoming worse if the set-off should be refused him.

9. Paulus, On the Edict, Book XXXII.

Where a partnership has been contracted with a son under paternal control or a slave, and the father or the master brings suit, we include the whole amount in a set-off; although if we should bring suit, only that which has reference to the peculium must be made good.

(1) But where suit is brought against a son under paternal control, the question arises whether the son can, by way of set-off, claim, what is owing to the father? It is better to hold that he can, because there is only one contract, but this should be done under the condition that he gives security that his father will ratify his act, that is to say, that he will not, in the future demand what his son has set off.

10. Ulpianus, On the Edict, Book LXIII.

Where two of us, being partners, have been guilty of the same negligence in matters affecting the partnership, it must be said that we cease to be bound to one another, set-off for the negligence in this instance, taking place by operation of law. In like manner, it is held that, where one partner has appropriated something which belongs to the common property and the other has been guilty of such negligence that it may be estimated at the same amount, set-off is held to have taken place, as well as the release of liability of both parties to one another by operation of law.

(1) Therefore, where anyone, being able to make a set-off pays, he can bring suit to recover the money as having been paid when it was not due.

(2) Whenever a right of action arises from a breach of the law, as, for instance, from theft and other offences, if only a suit involving money is brought, a set-off can be admitted. The same rule applies where an action is brought for the recovery of stolen property. But if a party is sued in a noxal action, he can claim a set-off.

(3) Set-off can also take place in stipulations which resemble certain forms of action, that is to say, praetorian ones; and, according to Julianus, set-off can be claimed as well with reference to a stipulation itself, as in the action based upon it.

11. The Same, On the Edict, Book XXXII.

When one party owes another a sum of money without interest, and the latter owes the other a sum bearing interest; it was decreed by the Divine Severus that interest was not due on the sums owed to one another by the two parties respectively.

12. The Same, On the Edict, Book LXIV.

This law is applicable not only to the affairs of private individuals, but also those connected with the Treasury. Where, however, the money borrowed by the parties from one another bears interest, but the interest is at different rates, a set-off can, nevertheless, take place with reference to the sums due to the parties respectively.

13. The Same, On the Edict, Book LXVI.

Labeo says, and not without reason, that where a set-off is expressly intended to be made against a certain claim, opposition should not be made to its application to other claims.

14. Javolenus, On Cassius, Book XV.

Any claim that can be destroyed by an exception cannot be included in a set-off.

15. The Same, Epistles, Book II.

I stipulated for a certain sum of money to be paid by Titius at a certain place, he demands of me a sum of money which I owe him; I ask whether the interest I had in having the amount paid to me in a certain place, as aforesaid, should be included in the set-off? The answer was, that if Titius makes the demand, the sum also which he promised to pay in a certain place must be included in the set-off; but this must be done with reference to his case also, that is to say, the interest Titius had in having the sum of money owing to him paid in a place agreed upon must be taken into consideration.

16. Papinianus, Questions, Book III.

Where a soldier has two heirs, one of whom inherits his peculium castrense, and the other the remainder of his property, a party who is indebted to one of the heirs, who wishes to set off what is due to him from the other, shall not be heard.

(1) Where a party against whom judgment has been rendered in favor of Titius, brings an action against the same Titius within the time granted for the execution of the judgment, who, himself, had previously had judgment rendered against him in favor of the other party, set-off will be admitted; for it is one thing for the day of the obligation not to arrive, and another to grant time for payment through motives of humanity.

17. The Same, Opinions, Book I.

An aedile, who has had judgment rendered against him because he distributed a smaller supply of provisions during his term of office than he should have done, cannot be held to be a debtor for money spent for grain; he will therefore be entitled to set-off.

18. The Same, Opinions, Book III.

Where an agent is appointed to conduct his own case in court, and, after issue has been joined, suit is brought against him for a loan, he will justly be entitled to a set-off.

(1) A creditor is not obliged to set off what he owes to anyone else than his debtor, even though the creditor of him in whose behalf the party is sued for his own debt may desire to make use of a set-off.

19. The Same, Opinions, Book XI.

Where a debtor who has paid a tax to a public slave, but without the consent of those to whom he should properly have paid the debt, the former obligation will continue to be in force; but a set-off will be granted to the extent of the peculium which the public slave has in his possession.

20. The Same, Opinions, Book XIII.

Where a person having charge of furnishing supplies to troops in an expedition, has judgment rendered against him on this account, it is held that he cannot retain the money by the right of set-off, as it is not subject to it.

21. Paulus, Questions, Book I.

Since it has generally been held that what persons owe one another is set off by mere operation of law, if the agent of a person who is absent is sued, he need not give security that his act will be ratified, because nothing can be set off, but a smaller sum can be demanded from him in the beginning.

22. Scaevola, Questions, Book II.

If you owe anyone ten thousand sesterces or a slave, whichever he may choose, set-off of the debt will be admitted, if he states openly which he prefers.

23. Paulus, Opinions, Book IX.

Where a guardian makes a demand in the name of his wards for what is due to them, the debtor cannot ask that his debt be set-off against one that the guardian himself owes him.

24. The Same, Decrees, Book III.

The Emperor ordered that a party should be heard who desired to prove that an amount was owing to him from the Treasury equal to that for which he himself was sued.
 

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Tit. 3. Concerning the direct and contrary actions on deposit.

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1. Ulpianus, On the Edict, Book XXX.

A deposit is what is given to another for safe-keeping. It is derived from the word ponere, to place, and the preposition de adds to the meaning of the term, and indicates that everything which pertains to the safe-keeping of the article in question is entrusted to the good faith of the party.

(1) The Praetor says: "Where property has been deposited, I will grant an action for simple damages, for any other cause than a tumult, a fire, the ruin of a building, or a shipwreck. I will grant one for double damages against the depositary in those cases which are mentioned above. I will grant one for simple damages against the heir of him who is alleged to have been guilty of bad faith with reference to the property deposited, and I will grant an action for double damages where the heir himself has been guilty of fraud."

(2) The Praetor, very properly placed by themselves those cases of deposit which result from necessity occasioned by accidental circumstances, and which do not depend upon the will of the party making the same.

(3) A person is understood to have made a deposit on account of a tumult, or of a fire, or for other causes, when he has no other reason to make it than the imminent danger arising from the above mentioned catastrophes.

(4) This distinction of causes is reasonable, since when anyone relies upon the faith of the depositary, and the deposit is not returned, he should be content with an action for the mere recovery of the property, or its value. When, however, he makes a deposit through necessity, the crime of perfidy increases in its seriousness, and the public welfare demands retribution, for it is injurious to violate a trust in cases of this kind.

(5) The accessories to property which is deposited are not included; as, for instance, where a slave who is clothed is deposited this does not apply to his garments, nor is a halter deposited with a horse, for the horse alone is deposited.

(6) If it is agreed upon that the party shall be responsible for negligence with reference to the deposit, the agreement is valid, for the law of contracts depends upon the agreement.

(7) It will not be held that damage resulting from fraud shall not be made good, even if this should be agreed upon; for a contract of this kind is contrary to good faith and good morals, and therefore should not be observed.

(8) Where clothing given to the keeper of a bath to be taken care of is lost, if he received no compensation for the care of it, I am of the opinion that he will be liable for the deposit only where he has been guilty of bad faith; but if he received compensation, an action can be brought against him on the ground of hiring.

(9) Where anyone compels a slave, who has been entrusted to him for safe-keeping, to work in a mill, and he receives any remuneration for guarding him, I think that an action on hiring will lie against the miller. If, however, I myself received pay for the slave whom the miller took into the mill, suit can be brought against me for leasing him. Where the labor of the slave was set off against the compensation for his custody, a certain kind of leasing and hiring arises, but because no money is paid, an action will be granted on the terms of the contract. If, however, the party furnished the slave nothing else but food, and no agreement was made with reference to his labor, an action on deposit will lie.

(10) In leasing and hiring, and in matters in which an action should be granted on the terms of the contract, the parties who received the slave will be responsible for fraud and negligence; but, if they only furnished him with food, they will merely be responsible for fraud, since, (as Pomponius says), we must follow what was prescribed or agreed upon, provided we know what it is; and if anything was prescribed, the parties who received the slave will only be responsible for any fraud which is involved in the deposit.

(11) If I request you to take some article of mine to Titius, in order that he may take care of it; Pomponius asks by what action I can institute proceedings against you? He thinks that I would be entitled to an action on mandate against you, but to one on deposit against the party who received the property; if, however, he received it in your name, you and he will be liable to me in an action on mandate, and he will be liable to you in an action on deposit, and this right of action you can assign to me when I sue you on mandate.

(12) Where I have given you any property on condition that you will take care of it if Titius should not be willing to receive it, and he does not receive it; it should be considered whether merely an action on deposit, or also one on mandate will lie. Pomponius is in doubt on this point, but I think that an action on mandate will lie, because the mandate is of greater scope with reference to the condition of safe custody.

(13) Pomponius also asks if I direct you to keep safely some property received from another in my name, and you should do this, will you be liable to an action on mandate, or to one on deposit? He rather holds that there should be an action on mandate, because this is the first contract.

(14) Pomponius also asks, where you are willing for me to make a deposit with you, and you direct it to be made with your freedman, whether I can proceed against you by an action on deposit? He says if I had deposited the property in your name, that is to say, with the understanding that you are to take charge of it, I will have an action against you on deposit, but if you persuade me that I should rather make a deposit with the freedman, no action will lie against you, since the action on deposit must be brought against him; or will you be liable on mandate because I was transacting my own affairs? But if you directed me to make the deposit with the freedman at your risk, I do not see why an action on mandate will not lie. Labeo says that it is evident that if you have given security, the surety will, by all means be liable, not only if the party who received the deposit was guilty of fraud, but even if he is not, the property is still in his hands; for what if he, with whom the deposit was made, should become insane, or a ward, or should die without leaving an heir, a possessor of, or a successor to his estate? He will, therefore, be liable to make good what is customary in an action on deposit.

(15) The question arises whether an action on deposit can be granted against a ward with whom a deposit has been made without the authority of his guardian? It must be held that he can bring an action on the ground of fraud, if the deposit was made with him when he was old enough to be guilty of the offence, for an action will be granted against him for the amount by which he would have been pecuniarily benefited if he had not been guilty of fraud.

(16) Where the property deposited is returned in a deteriorated condition, an action on deposit can be granted, just as if it had not been returned at all; for when property is returned in a worse condition than it was in the first place, it can be said that it has not been returned at all on account of fraud.

(17) If my slave has made a deposit, I will, nevertheless, be entitled to an action on deposit.

(18) If I make a deposit with a slave, and bring suit against him after he has been manumitted, Marcellus says that the action will not lie; although we are accustomed to hold that anyone should be liable for fraud committed even in servitude, because both crimes and damages follow the person of the guilty, and therefore, in this instance recourse must be had to other actions which can be brought.

(19) This action will lie in favor of the possessor of property and other possessors, as well as in favor of him to whom restitution of an estate is granted under the Trebellian Decree of the Senate.

(20) Not only is fraud previously committed involved in an action on deposit, but also that which may be committed subsequently, that is to say, after issue has been joined.

(21) Hence, Neratius states that if property which has been deposited is lost without fraudulent contrivance, and is recovered after issue has been joined, the defendant will nevertheless, properly be required to make restitution, and that he should not be released from liability unless he does so. Neratius also says that even though the action on deposit may have been brought against you at a time when you did not have power to make restitution, as, for instance, when the warehouses were closed; still, if you had power to make restitution before judgment was rendered against you, you should be condemned unless you do so, because the property is in your hands; for inquiry should then be made whether you acted in bad faith since you did not have the property.

(22) It is stated by Julianus in the Thirteenth Book of the Digest, that anyone who deposits property can immediately bring an action on deposit, since he who received it is guilty of an act of bad faith because he does not return it when demanded. Marcellus, however, stated that he who does not return it to the person who claims it, cannot always be held to have acted fraudulently; for what if the property was in the province, or in a warehouse which could not be opened at the time judgment was rendered, or the condition upon which the deposit depended had not been fulfilled?

(23) There is no doubt that this action is a bona fide one.

(24) And, for this reason, the crops, all accessories, and the yield of flocks should be embraced in this action, lest only the bare article itself should be included.

(25) If you sold the property which was deposited, and you subsequently purchased it on account of the deposit, even if it should afterwards be destroyed without bad faith on your part, you will be liable for the deposit, because you once acted fraudulently when you sold the property.

(26) In an action on deposit also, a judicial oath is taken with reference to the value of the property.

(27) It seems to be perfectly just that I should be granted this action, not only if my slave, but if one who is serving me as a slave in good faith, deposited the property, if he deposited it as belonging to me.

(28) In like manner, I can bring this action if I have an usufruct in a slave, and what he deposited was part of his peculium, which belonged to me or was my property.

(29) Moreover, if a slave belonging to an estate makes a deposit, the heir, who afterwards enters upon the estate, can bring the action.

(30) Where a slave makes a deposit, whether he lives or dies, the master can properly bring this action; if, however, the slave is manumitted he cannot bring it. But if the slave should be alienated, he who owned him at the time when the deposit was made will still have a right of action, for the beginning of the contract must be taken into account.

(31) Where a slave belonging to two parties makes a deposit, each of his masters can bring an action on deposit for his share.

(32) If you restore property to Titius which has been deposited with you by a slave of whom you thought Titius to be the master, when he was not; you will not be liable to an action on deposit, so Celsus says, because there is no fraud on your part; but the master of the slave can bring an action against Titius to whom the property was delivered. If he produces the property, it can be recovered by an action, but if he used it up when he knew it belonged to someone else, judgment will be rendered against him, because he acted fraudulently to avoid remaining in possession.

(33) The following question is very appropriately asked by Julianus. If a servant deposited money with me in order for me to pay it to his master for his freedom, and I paid the money, will I be liable to an action on deposit? He states in the Thirteenth Book of the Digest that if I pay money in this manner which was, as it were, deposited with me for this purpose, and I notify you of the fact, you will not be entitled to an action on deposit, because you, knowing the fact, received the money, and therefore I have not been guilty of fraud; but if I pay the money, as if it was mine, for the purpose of obtaining the freedom of the slave, I will be liable. This opinion appears to me to be correct; for, in this instance, not only did the depositary not restore the property without bad faith, but he did not restore it at all, for it is one thing to restore it, and another to pay it out as if it was one's own.

(34) Where money has been deposited with you with the understanding that you can use it, if you think best, you will be liable to an action on deposit before you make use of it.

(35) It frequently happens that property or money which is deposited, is left at the risk of the party to whom it is entrusted, for example, where the parties have especially agreed to this. Julianus states, however, that if anyone has offered himself as a depositary, he assures the risk of the deposit, so that he must be responsible not only for fraud, but also for negligence and safe-keeping, but not for accidents.

(36) Where money is deposited in a bag which is sealed, and one of the heirs of the person who made the deposit appears and claims it; it should be considered in what way the depositary must satisfy him. The money ought to be taken out of the bag either in the presence of the Praetor, or in that of respectable persons, and the claimant paid in proportion to his share of the estate. If, however, the depositary breaks the seal, this will not be done contrary to the intention of the deposit, since it took place by the authority of the Praetor, or in the presence of respectable persons. So far as to what remains in his hands is concerned, if he wishes to retain it after new seals have been placed upon it either by the Praetor or by the parties in whose presence the other seals were broken he can do so; or if he refuses to retain it, it may be deposited in a temple. Where, however, the property is such that it cannot be divided, the depositary should deliver it all to the claimant, after he has given proper security that he will be responsible for all above his share; but where security is not furnished, the depositary should place the property in a temple, and be released from liability to any action.

(37) Another example is given by Julianus in the Thirteenth Book of the Digest. He says that if the depositor dies, and two persons appear disputing with each other, each one asserting that he is the sole heir, the property should be delivered to him who is ready to defend it against the other claimant, that is to say, he who has received the deposit. If, however, neither will accept this responsibility, he says that it is most convenient that he should not be compelled by the Praetor to undertake the defence. Therefore, it is necessary for the property to be deposited in some temple until the right to the estate is judicially decided.

(38) Where anyone, in the presence of several persons reads a will which has been deposited with him, Labeo says that an action on deposit can properly be brought against him on account of the will; but I am of the opinion that an action for injury can also be brought, if the contents of the will were read in the presence of those parties with the intention that the secret provisions made by the testator should bedivulged.

(39) If a depredator or a thief makes a deposit, Marcellus states in the Sixth Book of the Digest that either of them will lawfully be entitled to an action on deposit; for it is to his interest to have it, because he may be held liable.

(40) Where anyone demands a deposit of gold or silver should the article only be designated or should the weight also be included? The better opinion is that both should be included; as, for instance, the dish, or cup, or bowl should be mentioned, and the material and weight should be added. Where, however, the article is purple which has not been used, or wool, the weight should in like manner be added; except where uncertainty exists as to the amount of the weight, and recourse is had to an oath.

(41) Where a chest which has been sealed is deposited, but the chest alone is claimed, should its contents be included? Trebatius says that the chest can be claimed, and that an action should not be brought for the individual articles of the deposit; but if the property is first exhibited and then deposited, the description of the clothing must be added. Labeo, however, says that the party who deposited the chest is held to have also deposited the separate articles contained therein, and therefore we must bring suit for the property. Then what if the party who received the deposit was ignorant that the property was there? It does not make much difference, since he received the deposit; and I think that an action can be brought for the property forming the deposit, even though the chest was sealed when placed in the hands of the depositary.

(42) It is established that a son under paternal control is liable for a deposit, because he is liable to other actions; but suit can also be brought against his father, but only with reference to the son's peculium. The same rule applies to a slave, for he can be sued along with his master. It is evident, as Julianus stated and as it appears to us, that if suit is brought on account of persons who are under the control of anyone, the case may be tried; so that if any deceit or fraud has been committed by him under whose authority they are, or by the parties with whom the contract was made, their bad faith may become apparent.

(43) Where property is deposited with two persons, an action can be brought against either of them, nor will one of them be released if suit is brought against the other, for they are discharged from liability not by the choice of the depositor but by payment. Hence, if both are guilty of fraud, and one of them pays the amount of the claim, the other cannot be sued; just as in the case of two guardians. Where, however, one of them can either not pay anything, or an amount less than the claim, recourse can be had to the other. The same rule applies where one of them was not guilty of fraud, and therefore was discharged, for, in this instance, recourse can be had to the other.

(44) Where, however, two parties made a deposit, and both of them bring suit, if, indeed, they made the deposit with the understanding that one could remove all of it, he can bring an action for the entire amount; but if the understanding was that only the share in which each of them was interested could be removed by him, then it must be said that judgment should be rendered against a depositary for the share of each.

(45) If I make a deposit with you with the understanding that it shall be returned after your death, I can bring an action on deposit against you, and against your heir, for I can change my mind, and claim the deposit before your death.

(46) Hence, if I make a deposit with you to be returned after my death, both I and my heir can bring an action on deposit, if I have changed my mind.

(47) For the reason that only bad faith is involved in this proceeding, the question arose whether, if the heir sold the property deposited with the testator or lent to him for use, he being ignorant that the said property had been deposited or lent, will he be liable. For the reason that he did not act in bad faith, he will not be liable for the property. Will he, nevertheless, be liable at least for the price of it which came into his hands? The better opinion is that he will be liable, for he was guilty of bad faith in not giving up what came into his hands.

2. Paulus, On the Edict, Book XXXI.

But what if he had not yet collected the purchase-money, or had sold the property for a smaller sum than he should have done? He must only assign his rights of action.

3. Ulpianus, On the Edict, Book XXXI.

It is clear that, if he could buy the property back, and return it, and does not wish to do so, he is not free from negligence; just as if he was unwilling to return it if it had been bought back or had come into his possession in any other way, alleging as an excuse that he sold it once while ignorant of the facts.

4. Paulus, On Plautius, Book V.

Even if the person is not the heir, but thinks that he is, and sells the property, the profit he has obtained must be wrested from him in the same way.

5. Ulpianus, On the Edict, Book XXX.

The counter action of deposit is granted in favor of the party with whom the deposit is alleged to have been made, and in this action it is not necessary for an oath to be taken as to the amount; for proceedings are instituted, not on account of broken faith, but in order that the party who received the deposit may be indemnified.

(1) An action on deposit can be brought against a sequestrator, if, however, an agreement is made with the latter that he should produce the property deposited, at a certain place, and he does not do so, it is clear that he will be liable. But, if the agreement had reference to several places, it is in his discretion at which of them he will produce it, but where no agreement was made, he must be notified to produce the property before the Praetor.

(2) If the sequestrator wishes to relinquish his office, what course must be taken? Pomponius says that he must appear before the Praetor and having with his consent notified the parties who selected him, he must return the property to the one who appeared. I do not think, however, that this is always correct, for he frequently should not be allowed to relinquish an office which he has once undertaken, which would be contrary to the understanding with which the deposit was made, unless a very just cause arises; and when it is permitted, the property should be very rarely restored to the party who appears, but it ought to be deposited in some temple in accordance with the decision of a court.

6. Paulus, On the Edict, Book II.

A deposit is properly made with a sequestrator which is delivered in its entirety by several persons, to be kept safely and returned under a certain condition.

7. Ulpianus, On the Edict, Book XXX.

Where a slave is deposited with a sequestrator in order that he may be put to the torture, and because of his being chained or confined in an uncomfortable place, he, induced by pity, released him; I am of the opinion that this act very nearly resembles fraud, for, as he knew the purpose for which the slave was destined, he displayed his compassion at an improper time, since he should rather not have undertaken such a task than to have been guilty of deceit.

(1) The action on deposit is granted for the whole amount against an heir on account of the bad faith of the deceased, for even though we are not usually liable for the fraudulent act of a deceased person, except with reference to that portion of the estate which comes into our hands; still, in this instance, the bad faith descends from a contract which gives rise to an action to recover the property, and therefore a single heir will be liable for the entire amount, but where there are several heirs, each one will be liable for his share.

(2) Whenever bankers become bankrupt, the accounts of the depositors must, in the first place, be considered; that is to say, those of such as have money on deposit which they have not placed at interest with the said bankers, or left with them to make use of. Therefore, if the property of the bankers is sold, the depositors will be entitled to their money before the privileged creditors; but this will only be done where the parties have not afterwards received interest, as they will be considered to have renounced their deposits.

(3) The question also arises whether the order in which the parties made their deposits shall be considered, or whether all the deposits together shall be taken into account. And it has been established that they were all on the same footing, for this has been settled by an Imperial Rescript.

8. Papinianus, Questions, Book IX.

The depositary can exercise his privilege, not only with reference to the remainder of the deposit which may be found among the assets of the banker, but also with reference to all other property of the banker who has been guilty of fraud; and this rule has been adopted on the ground of public utility. It is evident that the expenses necessarily incurred are always preferred claims, for, after they have been deducted, it is customary to make an appraisement of the property.

9. Paulus, On the Edict, Book VII.

Where, in the action on deposit, suit is brought against one of several heirs on account of an act of the deceased, I must sue him for his share of the estate; but if, on account of an offence which he has committed, I do not sue him for a share, this is reasonable, because the measure of damages has reference to the act of bad faith which the heir himself committed.

10. Julianus, On Minicius, Book II.

The action on deposit does not lie against co-heirs who are not guilty of fraud.

11. Ulpianus, On Sabinus, Book XLI.

Where a slave makes a deposit, the party with whom it is made is authorized by good faith, and most justly, to return the property to the slave; for it is not consistent with good faith to refuse to deliver what anyone has received, but it should be returned to him from whom he obtained it, and this should be done in such a way as to restore it without any bad faith, that is to say, that there may not be even a suspicion of negligence. Sabinus further explains this, by adding that there should be no cause for the depositary to think that the master was unwilling for the property to be returned to the slave; and this is correct, unless he was influenced by some good reason to suspect the slave, but it is sufficient if he displayed good faith. If, however, the slave had previously been guilty of theft, and the party with whom the deposit was made was ignorant of the fact, or believed that the master was not unwilling for the delivery of the property, he will be released from liability, for good faith is always required. Not only will the depositary be released by returning the property to the slave if the latter remained in servitude, but also if he was manumitted or alienated, provided he did so for good and sufficient reasons; for instance, if he returned it not knowing that the slave had been manumitted or alienated. Pomponius states that the same rule should be observed in the case of all debtors.

12. Pomponius, On Sabinus, Book XXII.

Where a deposit was made in Asia to be returned at Rome, it is held that the intention was that this should be at the expense of the party who made the deposit, and not at that of him with whom it was. placed.

(1) A deposit should be returned to the place in which it is found, without any fraudulent act of the party with whom the property was deposited. It, indeed, makes no difference where the deposit was made. The same principles apply generally to all bona fide actions. It must be said, however, that if the plaintiff wishes the property to be transported to Rome at his expense and risk, he should be heard; for this is also done in the action for production.

(2) An action on deposit can properly be brought against a sequestrator, and it is also granted against his heir.

(3) Just as where property which must be delivered in compliance with the terms of a stipulation or a will, is destroyed after issue has been joined; so, also, a deposit from the day on which it was made will be at the risk of the party in whose hands it was placed, if, at the time issue was joined, the defendant could have restored it, but did not do so.

13. Paulus, On Sabinus, Book XXXI.

Where a person refuses to return property, not to the owner of the same but to someone who demands it, and whom he does not think to be the genuine agent or heir of the person who made the deposit, he is not guilty of bad faith. However, if he should afterwards learn that the claimant had authority, an action can be brought against him, since he now begins to be guilty of bad faith, if he refuses to return the property.

(1) A personal action for recovery will also lie on account of property deposited, but not before fraud has been committed; for no one is liable to a personal action for recovery merely because he has received the deposit, but only when he has been guilty of fraud.

14. Gaius, On the Provincial Edict, Book IX.

Where there are several heirs of the party who made the deposit it is held that if the majority of them appear the property should be returned to those who are present. The majority should be understood to mean, not the larger number of persons, but the greater amount of the shares of the estate, and proper security must be furnished.

(1) Whether proceedings are instituted against him with whom the property was deposited or against his heir, and the property naturally perished before a decision is rendered, for instance, if a slave whose ownership was in dispute should die; Sabinus and Cassius say that the party against whom the action was brought ought to be discharged, because it is only just that the natural loss of the property should be borne by the plaintiff, since it would have perished even if it had been returned to him.

15. Julianus, Digest, Book III.

He who allows his own property to be deposited with him or requests permission to use it, is not liable to an action on deposit or on one of loan for use, just as in the case of a party who rents his own property, or asks to hold it by sufferance, for he is not liable in either instance.

16. Africanus, Questions, Book VII.

If he with whom you deposit property makes a deposit of the same with another, and the latter is guilty of fraud; he with whom you deposited the property will be liable for the bad faith of him with whom it was subsequently deposited, to the extent that he must assign his rights of action to him.

17. Florentinus, Institutes, Book VII.

It is lawful for several persons, just as it is for one, to make a deposit; nevertheless, only several persons can make one with a sequestrator, for this is done when property is in dispute, and therefore, in this instance, each one is held to have made the deposit in its entirety. The case is otherwise where several joint-owners deposit property held in common.

(1) Ownership of the article deposited remains with the depositor, as well as possession, unless it is deposited with a sequestrator; for then the latter has possession; for in making the deposit it is the intention that neither shall have possession during the time that it is so held.

18. Neratius, Parchments, Book II.

In case a deposit is made on account of a tumult, a fire, the destruction of a house, or a shipwreck, the action brought against the heir on account of the fraud of the deceased is for his share of the estate, and for simple damages, and it also must be brought within a year; but where it is brought against the heir himself it is granted for the entire amount, for double damages, and without reference to time.

19. Ulpianus, On the Edict, Book XVII.

Julianus and Marcellus are of the opinion that a son under paternal control can properly bring an action on deposit.

20. Paulus, On the Edict, Book XVIII.

If you, without having been guilty of fraud, have lost property which has been deposited with you, you will not be liable to an action on deposit, nor should you give security to return the property if you should again obtain possession of it. If, however, it should come into your hands a second time, you will be liable to an action on deposit.

21. The Same, On the Edict, Book LX.

Where property has been deposited with a son under paternal control, and he still retains it after having been emancipated, the father cannot be sued on the peculium within a year, but the son can be.

(1) Trebatius goes still farther, for he thinks that if the deposit was made with the slave, and he, having been manumitted, retains the property, an action should be granted against him, and not against his master; although an action is not granted against a manumitted person • in other cases.

22. Marcellus, Digest, Book V.

Where two heirs fraudulently interfere with property which has been deposited with the deceased, they will, in some instances, only be liable for a portion of the same, for if they divide ten thousand aurei which were deposited with the deceased, and misappropriate five thousand of them, and both are solvent, they will each be liable for half, because the plaintiff has no further interest. But where they have melted a plate or permitted this to be done by someone else, or have committed any other kind of fraud, they can be sued for the entire amount, just as if they themselves had been charged with the safekeeping of the property; for it is certain that each one of them is guilty of fraud, and unless they were liable for the whole amount, restoration of the property could not take place. Nor does it appear absurd for one to think that unless restitution of the entire property is made, he against whom suit has been brought cannot be released but must have judgment rendered against him, if the property was not restored in proportion of the share of the estate to which he was heir.

23. Modestinus, Differences, Book II.

Where anyone is sued in an action on deposit, he can properly institute proceedings before the same judge on account of food which has been furnished a slave.

24. Papinianus, Questions, Book IX.

Lucius Titius to Sempronius Greeting: "I notify you by this letter written by my own hand, that the hundred pieces of money which you loaned to me this day, and which have been counted by the slave Stichus, your agent, are in my hands, and that I will pay them to you on demand, when and where you desire me to do so." The question arises whether any increase by way of interest is to be considered? I answered that an action on deposit will lie, for what is the loaning of anything for use but the depositing of it? This is true, if the intention was that the very same coins should be returned, for if it was understood that only the amount should be paid, the agreement exceeds the limits of the deposit. If, in the case which has been stated, an action on deposit will not lie, since it was only agreed to pay the same sum, and not the identical coins, it is not easy to determine whether an account of the interest should be taken. It has, in fact, been established that, in bona fide actions, it is the duty of the judge to decide that, with reference to interest, only such can be paid as the stipulation provides for. But is contrary to good faith and the nature of a deposit, that interest should be claimed before the party who granted the favor by receiving the money, is in default in returning it. If, however, the agreement was that interest should be paid from the beginning, the condition of the contract shall be observed.

25. The Same, Opinions, Book III.

Where a father received the presents given to his daughter, who was her own mistress, on the day of her betrothal, or afterwards, his heir can properly be sued in an action on deposit to compel him to produce the property.

(1) Anyone who converts to his own use money which had been deposited with him, but not sealed up, with the understanding that he should return the same amount, and should have judgment rendered against him, in an action on deposit, for the interest from the time when he was in default.

26. Paulus, Opinions, Book IV.

Publia Maevia, when about to depart to visit her husband, entrusted to Gaia Seia a closed box containing clothing and written documents, and addressed her as follows: "If I come back safe and sound you will return this to me, but if anything should happen to me, give it to my son whom I had by my first husband." The woman having died intestate, I wish to know to whom the property which she had entrusted to the other should be delivered, to her son, or to her husband? Paulus answered, to her son.

(1) Lucius Titius made the following statement: "I have received, and have in my hands as a deposit the sum of ten thousand denarii of silver, and I promise and bind myself to return all the said amount, as agreed upon between us; and, in accordance with the contract entered into, I will pay you every month four oboli for each pound by way of interest, until payment of the entire sum has been made." I ask whether interest can be demanded? Paulus answers that the contract to which reference has been made exceeds the limit of a deposit of money, and therefore, in accordance with the agreement, interest can be claimed in an action on deposit.

(2) Titus, to the members of the family of Sempronius, Greeting: "I have received from you the weight of about ten pieces of gold, two discs, and a sealed sack, on which you owe me ten pieces, which you have deposited with Titius, and you also owe ten to Trophimas; and you also owe ten on an account of your father, and something more besides." I ask whether any obligation arises from a written paper of this kind, and especially anything which has reference to this money? The answer was that, in fact, no obligation seems to have arisen from the letter which was the object of the inquiry, but that it could only serve to prove that a deposit of property was made. The judge must determine whether the party, who bound himself for ten pieces of gold in the same letter, can prove what he wrote.

27. The Same, Opinions, Book VII.

Lucius Titius had a daughter named Seia under his control, he gave her in marriage to a slave named Pamphilus, who did not belong to him, and he gave the latter the dowry, taking an acknowledgment from him that it was only left in his hands by way of deposit; and then, the master of the slave not having been notified of said deposit, the father died, and soon afterwards Pamphilus, the slave, also. I ask, by means of what action can Seia recover the money, as she was the heir of her father? Paulus answered that, since the dowry was not actually constituted, the money could be recovered by an action De peculio on the ground of a deposit.

28. Scaevola, Opinions, Book I.

Quintus Caecilius Candidus wrote a letter to Paccius Rogatianus in the following terms: "Caecilius Candidus to his friend Paccius Rogatianus, Greeting. I notify you by this letter that I have received and entered in my account-book the receipts of the twenty-five pieces of money which you have remitted to me, and at the first opportunity I will take care that this money shall not be idle, that is to say, that you will receive interest thereon." The question arose whether interest can also be collected on account of this letter. I answered that interest will be due in a bona fide action, if the party collected it, or used the money for his own purposes.

29. Paulus, Sentences, Book II.

If I make a deposit of silver in a bag or sealed, and the person with whom I deposited the same makes use of it without my consent, I will be entitled to an action on deposit, as well as one for theft against him.

(1) If he with whom the deposit was made uses it with my permission, he will be compelled to pay me interest on this account, just as in other bona fide actions.

30. Neratius, Opinions, Book I.

If your surety has judgment rendered against him for damages on account of property deposited with you, the said property becomes yours.

31. Tryphoninus, Disputations, Book IX.

Good faith, which is required in contracts, demands the greatest degree of equity; but should we estimate that equity with reference to the Law of Nations, or in accordance with civil and praetorian precepts? For instance, a party accused of a capital crime deposited a hundred aurei with you, he was banished, and his property confiscated. Should the deposit of this money be returned to him, or be placed in the Public Treasury? If we only have in view the Law of Nature and of Nations, it should be returned to him who gave it; but if the Civil Law and the provisions of legal enactments are considered, it must be turned over to the Public Treasury, for he who has deserved ill of the people should be oppressed by poverty, in order to serve as an example to others for the prevention of crime.

(1) Another point comes up here for examination, that is, whether we should hold that good faith ought to be limited to the parties who have contracted with one another, without paying any attention to other persons who are interested in the matter under consideration. For example, a thief deposited with Seius, who was not aware of his criminality, some plunder which he had taken from me, should Seius restore the property to the thief, or to me? If we only consider the giver and the receiver, good faith requires that he who gave the property in charge of another should receive it; but if we look at the equity of the matter which is due to all the persons concerned in this transaction, that should be returned to me of which I have been deprived by a most wicked act. I believe that to be justice which gives to every one his own, in such a way that any person who has a better claim may not be deprived of it. Therefore, if I do not appear to claim the property, it must, nevertheless, be returned to him who deposited it, even though he did so after having wrongfully obtained it. Marcellus states the same thing with reference to a depredator and a thief. Where, however, the thief, not being aware who was the father or master of the son or the slave from whom he took the property, deposits it with either of them, they being ignorant of the facts, this does not constitute a deposit according to the Law of Nations; because the character of a deposit is such that a man's own property must be given as that of another, for safe keeping, to some person who is not its owner. If a thief deposits with me my own property, which he took without my knowledge, I being ignorant of his crime, it is rightly held that no deposit is made; for it is not in accordance with good faith for an owner to be compelled to surrender his own property to a thief. But where, in a case of this kind, property placed on deposit is given up by its owner who was not aware of the facts, a personal action for the recovery of something that was not due will lie.

32. Celsus, Digest, Book XI.

While a statement of Nerva that gross negligence is fraudulent, is not accepted by Proculus, it seems to me to be perfectly true. For, even if anyone is not as diligent as human nature requires, still, he will not be free from fraud if he does not display that solicitude with respect to a deposit which is customary with him; for good faith will not be maintained if he shows less diligence with reference to said deposit than he exhibits concerning his own property.

33. Labeo, Last Epitomes of Javolenus, Book VI.

Your slave deposited, in sequestration, a certain sum of money with Attius at the house of Maevius, on condition that it should be delivered to you if you proved that it was yours, but if you did not, that it should be delivered to Attius. I stated that suit could be brought for an unascertained amount against him with whom the money was deposited, that is, for its production, and having been produced, an action could be brought for its recovery, because your slave, in making the deposit, could not prejudice your rights.

34. The Same, Probabilities, Book II.

You can bring an action on deposit against anyone who refuses to return your deposit on any other terms than that you pay him money, even though he may be willing to return it, on this condition, without delay and uninjured.